Full Text of SB2041 102nd General Assembly
SB2041 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 SB2041 Introduced 2/26/2021, by Sen. Donald P. DeWitte SYNOPSIS AS INTRODUCED: |
| 820 ILCS 305/11 | from Ch. 48, par. 138.11 |
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Amends the Workers' Compensation Act. Establishes standards with respect to cannabis for impairment sufficient to bar compensation for injuries to employees who are intoxicated. Provides that the presence of 5 nanograms of tetrahydrocannabinol in the blood or 10 nanograms of tetrahydrocannabinol in other bodily substances shall create a rebuttable presumption that intoxication is the proximate cause of the injury. Contains the statement: "Authorized use may be evidenced only by written consent by the employer to the employee, which consent shall not be unreasonably withheld".
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| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Workers' Compensation Act is amended by | 5 | | changing Section 11 as follows:
| 6 | | (820 ILCS 305/11) (from Ch. 48, par. 138.11)
| 7 | | Sec. 11. Measure of responsibility. Except as provided in | 8 | | Section 1.2, the compensation herein provided, together with | 9 | | the
provisions of this Act, shall be the measure of the | 10 | | responsibility of
any employer engaged in any of the | 11 | | enterprises or businesses enumerated
in Section 3 of this Act, | 12 | | or of any employer who is not engaged in any
such enterprises | 13 | | or businesses, but who has elected to provide and pay
| 14 | | compensation for accidental injuries sustained by any employee | 15 | | arising
out of and in the course of the employment according to | 16 | | the provisions
of this Act, and whose election to continue | 17 | | under this Act, has not been
nullified by any action of his | 18 | | employees as provided for in this Act.
| 19 | | Accidental injuries incurred while participating in | 20 | | voluntary recreational
programs including but not limited to | 21 | | athletic events, parties and picnics
do not arise out of and in | 22 | | the course of the employment even though the
employer pays | 23 | | some or all of the cost thereof. This exclusion shall not apply
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| 1 | | in the event that the injured employee was ordered or assigned | 2 | | by his employer
to participate in the program.
| 3 | | Notwithstanding any other defense, accidental injuries | 4 | | incurred while the employee is engaged in the active | 5 | | commission of and as a proximate result of the active | 6 | | commission of (a) a forcible felony, (b) aggravated driving | 7 | | under the influence of alcohol, other drug or drugs, or | 8 | | intoxicating compound or compounds, or any combination | 9 | | thereof, or (c) reckless homicide and for which the employee | 10 | | was convicted do not arise out of and in the course of | 11 | | employment if the commission of that forcible felony, | 12 | | aggravated driving under the influence, or reckless homicide | 13 | | caused an accident resulting in the death or severe injury of | 14 | | another person. If an employee is acquitted of a forcible | 15 | | felony, aggravated driving under the influence, or reckless | 16 | | homicide that caused an accident resulting in the death or | 17 | | severe injury of another person or if these charges are | 18 | | dismissed, there shall be no presumption that the employee is | 19 | | eligible for benefits under this Act. No employee shall be | 20 | | entitled to additional compensation under Sections 19(k) or | 21 | | 19(l) of this Act or attorney's fees under Section 16 of this | 22 | | Act when the employee has been charged with a forcible felony, | 23 | | aggravated driving under the influence, or reckless homicide | 24 | | that caused an accident resulting in the death or severe | 25 | | injury of another person and the employer terminates benefits | 26 | | or refuses to pay benefits to the employee until the |
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| 1 | | termination of any pending criminal proceedings. | 2 | | Accidental injuries incurred while participating as a | 3 | | patient in a drug
or alcohol rehabilitation program do not | 4 | | arise out of and in the course
of employment even though the | 5 | | employer pays some or all of the costs thereof. | 6 | | Any injury to or disease or death of an employee arising | 7 | | from the administration of a vaccine, including without | 8 | | limitation smallpox vaccine, to prepare for, or as a response | 9 | | to, a threatened or potential bioterrorist incident to the | 10 | | employee as part of a voluntary inoculation program in | 11 | | connection with the person's employment or in connection with | 12 | | any governmental program or recommendation for the inoculation | 13 | | of workers in the employee's occupation, geographical area, or | 14 | | other category that includes the employee is deemed to arise | 15 | | out of and in the course of the employment for all purposes | 16 | | under this Act. This paragraph added by this amendatory Act of | 17 | | the 93rd General Assembly is declarative of existing law and | 18 | | is not a new enactment.
| 19 | | No compensation shall be payable if (i) the employee's | 20 | | intoxication is the proximate cause of the employee's | 21 | | accidental injury or (ii) at the time the employee incurred | 22 | | the accidental injury, the employee was so intoxicated that | 23 | | the intoxication constituted a departure from the employment. | 24 | | Admissible evidence of the concentration of (1) alcohol, (2) | 25 | | cannabis as defined in the Cannabis Control Act, (3) a | 26 | | controlled substance listed in the Illinois Controlled |
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| 1 | | Substances Act, or (4) an intoxicating compound listed in the | 2 | | Use of Intoxicating Compounds Act in the employee's blood, | 3 | | breath, or urine at the time the employee incurred the | 4 | | accidental injury shall be considered in any hearing under | 5 | | this Act to determine whether the employee was intoxicated at | 6 | | the time the employee incurred the accidental injuries. If at | 7 | | the time of the accidental injuries : (1) , there was 0.08% or | 8 | | more by weight of alcohol in the employee's blood, breath, or | 9 | | urine ; (2) there was a tetrahydrocannabinol concentration of 5 | 10 | | nanograms or more in the whole blood or 10 nanograms or more in | 11 | | another bodily substance; (3) or if there is any evidence of | 12 | | impairment due to the unlawful or unauthorized use of (1) | 13 | | cannabis , as defined in the Cannabis Control Act, (2) a | 14 | | controlled substance listed in the Illinois Controlled | 15 | | Substances Act, or (3) an intoxicating compound listed in the | 16 | | Use of Intoxicating Compounds Act ; or (4) if the employee | 17 | | refuses to submit to testing of blood, breath, or urine, then | 18 | | there shall be a rebuttable presumption that the employee was | 19 | | intoxicated and that the intoxication was the proximate cause | 20 | | of the employee's injury. Authorized use may be evidenced only | 21 | | by written consent by the employer to the employee, which | 22 | | consent shall not be unreasonably withheld. The employee may | 23 | | overcome the rebuttable presumption by the preponderance of | 24 | | the admissible evidence that the intoxication was not the sole | 25 | | proximate cause or proximate cause of the accidental injuries. | 26 | | Percentage by weight of alcohol in the blood shall be based on |
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| 1 | | grams of alcohol per 100 milliliters of blood. Percentage by | 2 | | weight of alcohol in the breath shall be based upon grams of | 3 | | alcohol per 210 liters of breath. Any testing that has not been | 4 | | performed by an accredited or certified testing laboratory | 5 | | shall not be admissible in any hearing under this Act to | 6 | | determine whether the employee was intoxicated at the time the | 7 | | employee incurred the accidental injury. | 8 | | All sample collection and testing for alcohol and drugs | 9 | | under this Section shall be performed in accordance with rules | 10 | | to be adopted by the Commission. These rules shall ensure: | 11 | | (1) compliance with the National Labor Relations Act | 12 | | regarding collective bargaining agreements or regulations | 13 | | promulgated by the United States Department of | 14 | | Transportation; | 15 | | (2) that samples are collected and tested in | 16 | | conformance with national and State legal and regulatory | 17 | | standards for the privacy of the individual being tested, | 18 | | and in a manner reasonably calculated to prevent | 19 | | substitutions or interference with the collection or | 20 | | testing of reliable sample; | 21 | | (3) that split testing procedures are utilized; | 22 | | (4) that sample collection is documented, and the | 23 | | documentation procedures include: | 24 | | (A) the labeling of samples in a manner so as to | 25 | | reasonably preclude the probability of erroneous | 26 | | identification of test result; and |
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| 1 | | (B) an opportunity for the employee to provide | 2 | | notification of any information which he or she | 3 | | considers relevant to the test, including | 4 | | identification of currently or recently used | 5 | | prescription or nonprescription drugs and other | 6 | | relevant medical information; | 7 | | (5) that sample collection, storage, and | 8 | | transportation to the place of testing is performed in a | 9 | | manner so as to reasonably preclude the probability of | 10 | | sample contamination or adulteration; and | 11 | | (6) that chemical analyses of blood, urine, breath, or | 12 | | other bodily substance are performed according to | 13 | | nationally scientifically accepted analytical methods and | 14 | | procedures. | 15 | | The changes to this Section made by Public Act 97-18 apply | 16 | | only to accidental injuries that occur on or after September | 17 | | 1, 2011. | 18 | | (Source: P.A. 101-6, eff. 5-17-19.)
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